En banc Decision in Peruta -- a loss

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  • GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    People should read Justice Roberts' admonition at the end of the orders (for the 4th circuit voting rights case).

    A denial of cert does not mean anything as far as the merits. Might just mean its a procedural nightmare to reach the question.

    In other words, past denials is not an indicator of future results.

    Roberts and others can say that all they want, but when you have massive resistance to the core holding in Heller/McDonald, and Circuit decision after Circuit decisions made in bad faith and essentially applying rational basis scrutiny to an enumerated right, eventually the denials of cert begin to have meanings of their own.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Roberts and others can say that all they want, but when you have massive resistance to the core holding in Heller/McDonald, and Circuit decision after Circuit decisions made in bad faith and essentially applying rational basis scrutiny to an enumerated right, eventually the denials of cert begin to have meanings of their own.

    Given that Roberts is on the court and they get to choose the cases they take, his statements would hold a lot of weight. He cited supreme court precedent back to 1923, so it is not just his opinion, but that of many of the justices.

    If you look back at the cases, they are all argued as an individual right vs public safety. You have acknowledged that individual rights can get curtailed in these instances. I am baffled as to why you blame the courts, when the lawyers are to blame for arguing the cases in a way that is likely to loose. The courts are going to decide the cases based on the arguments presented.
     

    GlocksAndPatriots

    Banned
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    Aug 29, 2016
    763
    Given that Roberts is on the court and they get to choose the cases they take, his statements would hold a lot of weight. He cited supreme court precedent back to 1923, so it is not just his opinion, but that of many of the justices.

    If you look back at the cases, they are all argued as an individual right vs public safety. You have acknowledged that individual rights can get curtailed in these instances. I am baffled as to why you blame the courts, when the lawyers are to blame for arguing the cases in a way that is likely to loose. The courts are going to decide the cases based on the arguments presented.

    Because the decisions have nothing to do with the quality of the arguments. Everyone acknowledges that individual rights can be curtailed to a degree. When the courts accept any level of curtailment without any evidence that there is any benefit at all, it's bad faith.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Because the decisions have nothing to do with the quality of the arguments. Everyone acknowledges that individual rights can be curtailed to a degree. When the courts accept any level of curtailment without any evidence that there is any benefit at all, it's bad faith.

    Your argument is not supported by the court decisions. Heller III demonstrates that the court requires evidence. I am not aware of any case where the court accepted a level of curtailment without any evidence. While I agree the level of evidence is not very high, it is up to the court to determine the level of evidence it feels is appropriate.
     

    motorcoachdoug

    Ultimate Member
    MDS Supporter
    Cant help but wonder after all this time that the court might be writing a Per Curim, opps typo demon got me, to send back to the 9th CA and or this is really being disused at length. The Per Curim setting aside the en banc verdict because the 9th ca allowed the the state to intervene in the case or mabe they are tired of the lower courts disobeying the high court in Heller and McDonald.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The 4CA certainly didn't require much evidence freom the state in Kolbe.

    State-um, guns are bad umkay?

    Court -we agree,

    I agree that there was not very much evidence provided. This is why the individual right vs public safety is a bad argument. It is really easy for the government to win with little evidence. A public safety vs public safety argument is difficult for the government to win because they don't really provide public safety.
     

    Not_an_outlaw

    Ultimate Member
    Patriot Picket
    Jan 26, 2013
    4,679
    Prince Frederick, MD
    I agree that there was not very much evidence provided. This is why the individual right vs public safety is a bad argument. It is really easy for the government to win with little evidence. A public safety vs public safety argument is difficult for the government to win because they don't really provide public safety.

    How would you argue the case?
     

    Decoy

    Ultimate Member
    MDS Supporter
    Mar 2, 2007
    4,926
    Dystopia
    FYI, the meaning of Distributed for Conference

    Distributed for Conference at the Supreme Court of the United States

    link
     

    GlocksAndPatriots

    Banned
    BANNED!!!
    Aug 29, 2016
    763
    I agree that there was not very much evidence provided. This is why the individual right vs public safety is a bad argument. It is really easy for the government to win with little evidence. A public safety vs public safety argument is difficult for the government to win because they don't really provide public safety.

    I don't agree with your point. Public safety is implicated by many rights. For example, we could more easily punish violent criminals if we eliminated the 4th Amendment's protections too. But the courts there require very compelling evidence. The lower courts have no required any evidence beyond the legislature claiming "We think this will reduce crime." If that's all you need, there is no right at all.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    How would you argue the case?

    As stated previously, I would argue it as a public safety vs public safety issue. Individuals make up the public so the public's safety is a collection of every individuals safety (self defense). The government does not really provide public safety either.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    Roberts and others can say that all they want, but when you have massive resistance to the core holding in Heller/McDonald, and Circuit decision after Circuit decisions made in bad faith and essentially applying rational basis scrutiny to an enumerated right, eventually the denials of cert begin to have meanings of their own.

    Given that Roberts is the chief justice, it's not really just his opinion is it? He might know exactly what happened since he was the decider...

    SCT passes on a lot of cases where the circuits are wrong. That's how we get splits in the first place.

    Bad defendants make bad law. US V Miller is a classic case. We now have 75 years of horrendous precedent, due to a case where one party did not even show up to argue the case!

    It's way better if the court waits for the right pitch, rather than swing and miss a lot.
     

    swinokur

    In a State of Bliss
    Patriot Picket
    Apr 15, 2009
    55,394
    Westminster USA
    I don't agree with your point. Public safety is implicated by many rights. For example, we could more easily punish violent criminals if we eliminated the 4th Amendment's protections too. But the courts there require very compelling evidence. The lower courts have no required any evidence beyond the legislature claiming "We think this will reduce crime." If that's all you need, there is no right at all.

    but that's exactly what the 4CA did in Kolbe.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I don't agree with your point. Public safety is implicated by many rights. For example, we could more easily punish violent criminals if we eliminated the 4th Amendment's protections too. But the courts there require very compelling evidence. The lower courts have no required any evidence beyond the legislature claiming "We think this will reduce crime." If that's all you need, there is no right at all.

    My point is not much more than a collection of facts. You don't really need much evidence to eliminate the 4th amendment. Terry stops are an example. The police can search you for weapons during a lawful stop if they suspect you have a weapon. There is not much difference between that and the legislature claiming it will reduce crime.

    There is still a right, currently it is limited to a handgun in the home. If you want more than that, you need to argue the case differently.
     

    Not_an_outlaw

    Ultimate Member
    Patriot Picket
    Jan 26, 2013
    4,679
    Prince Frederick, MD
    As stated previously, I would argue it as a public safety vs public safety issue. Individuals make up the public so the public's safety is a collection of every individuals safety (self defense). The government does not really provide public safety either.

    That's great, but two lines in a court case isn't going to get you far. I'd like to see how this would be done. What cases would you cite, etc.? What laws, etc.? Where is public safety addressed so you can state your claim? I'm not disagreeing with you, I just want to understand where you are going.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    That's great, but two lines in a court case isn't going to get you far. I'd like to see how this would be done. What cases would you cite, etc.? What laws, etc.? Where is public safety addressed so you can state your claim? I'm not disagreeing with you, I just want to understand where you are going.

    Public safety is an important government interest (see Kolbe for references). The question is who actually provides public safety. Courts have ruled that these police power interests are owed to the public at large, not to any specific individual. (Warren V DC 444 A. 2d 1, 1981, Fried v Archer 775 A. 2d 430, 2001, Castle Rock v Gonzales 545 US 748, 2005, DeShaney V Winnebago County 489 US 189, 1989)

    See Stevens dissent in Heller, 544 US 642, regarding the collective component of the individual right for other rights. Public safety is a natural extension of this.

    At the time of the founding of the constitution, an organized police force did not exist. (Breyer dissent in Heller 544 US 716)

    In colonial times the king often sent the standing army to enforce the laws of the time. This led to clashes between the citizens and the standing army. The Boston Massacre in 1770 is an example of these clashes and is considered a landmark event of the American Revolution.

    Instead of having professional armies to protect us, we wanted the people themselves

    With the establishment of professional police departments, congress formally restricted the army’s role in providing public safety. See Posse Comitatus Act (18 USC 1385). The establishment of a professional police force has not prevented clashes with the public. The most recent example is in April of 2015 with the death of Freddie Gray, while in police custody. The Justice Dept has found that Baltimore Police violate peoples rights and the police department is under a consent decree by the federal government because of this. The fears of our founding father are coming true (Heller holding 1b)

    The government’s public safety interests are so strong that they can compel people to act on its behalf. The draft is an example of the federal government compelling people to provide for its generalized public safety interests. The state has methods to fine people if they do not help provide for this generalized public safety interests. What is ironic about these restrictions is that it actively prevents the public (collective component of the individual) from providing its own public safety using the firearms that the state feels necessary to provide public safety. (Heller holding 3)

    Is that enough or do you want more?
     

    Mike OTDP

    Ultimate Member
    Feb 12, 2008
    3,318
    I'm not a lawyer, but in a case like this, my reasoning would be as follows:

    1. The State claims that they can and should have may-issue laws on public safety grounds.

    2. "May-issue" is, in the jurisdiction in question, "won't issue". Cite statistics and examples.

    3. 2A has the words "keep and bear". Not "own" or "possess". Clear implication that there is a right to carry that extends outside the home.

    4. "Shall issue" policies are no longer a social experiment. 40 states have them, or have eliminated carry permits entirely. The results are demonstrable and consistent - no change in the murder rate, 20% cut in other violent crimes.

    5. Any constraint on an enumerated right must have not only a claimed public safety goal, but a clear positive effect. (This is where level of scrutiny comes into play)

    6. The State's policy has a clear negative effect on public safety, and is a constraint on an enumerated civil right. It is therefore unlawful.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,353
    SoMD / West PA
    The argument needs to be made that individuals bearing arms augments the professionals when it comes to public safety.

    This argument also supports the liberal fallacy of keeping guns out of the bad guys hands.
     

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